CBP data re: DHS 3115 summonses
| Tracking # |
CBP-2018-013173, CBP-AP-2019-047669 CBP-2018-013173 |
| Submitted | Nov. 20, 2017 |
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Communications
From: Shawn Musgrave
To Whom It May Concern:
This is a request under the Freedom of Information Act. I hereby request the following records:
Data provided to the DHS Office of the Inspector General with regard to the agency's use of summonses under 19 U.S.C. § 1509. Such summonses are issued using form DHS 3115, “Summons to Appear and/or Produce Records, 19 U.S.C. § 1509.”
This data is described in the attached report from DHS OIG, which also available online at https://www.oig.dhs.gov/sites/default/files/assets/2017-11/OIG-18-18-Nov17.pdf:
"Data provided by CBP to DHS OIG indicates that DHS 3115 regularly has been used by CBP OPR personnel in violation of the policy. For instance, despite the express prohibition against use of DHS 3115 in drug-smuggling cases, CBP OPR used DHS 3115 in at least 43 drug smuggling cases between January 2015 and May 2017, representing approximately 20% of the total summonses issued by CBP OPR during this period. Based on this data, it appears CBP OPR’s use of DHS 3115 during this period violated its own policy at least 1 out of every 5 times.
This same data reflects the use of DHS 3115 summonses in other questionable contexts. For instance, a DHS 3115 summons was used to obtain records from Craigslist in a matter involving a Border Patrol agent who allegedly attempted to sell government-issued night vision goggles on the site. Similarly, a DHS 3115 summons was used in several cases in which a CBP employee requested sick leave under false pretenses."
The requested documents will be made available to the general public, and this request is not being made for commercial purposes.
As a professional reporter, I assert that I am appropriately categorized as a media requester for the purpose of fees. Furthermore, as this concerns a matter of intense public interest — namely, the CBP's aborted attempt to require Twitter to provide information about the account @ALT_USCIS — I assert that this request is appropriate for a waiver of all fees. This matter was the subject of considerable media coverage. See, for example:
https://www.nbcnews.com/news/us-news/twitter-sues-feds-keep-anti-trump-admin-user-alt-uscis-n743566
https://www.npr.org/sections/thetwo-way/2017/04/06/522914335/twitter-sues-homeland-security-to-protect-anonymity-of-alt-immigration-account
http://www.latimes.com/business/la-fi-tn-twitter-homeland-security-customs-20170406-story.html
In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.
Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.
Sincerely,
Shawn Musgrave
From: United States Customs and Border Protection
This message is to confirm your request submission to the FOIAonline application: View Request. Request information is as follows: (https://foiaonline.regulations.gov:443/foia/action/public/view/request?objectId=090004d28171f319)
* Tracking Number: CBP-2018-012748
* Requester Name: Shawn Musgrave
* Date Submitted: 11/20/2017
* Request Status: Submitted
* Description: Please see attached documents for further details.
From: United States Customs and Border Protection
This message is to confirm your request submission to the FOIAonline application: View Request. Request information is as follows: (https://foiaonline.regulations.gov:443/foia/action/public/view/request?objectId=090004d28172344c)
* Tracking Number: CBP-2018-013173
* Requester Name: Shawn Musgrave
* Date Submitted: 11/20/2017
* Request Status: Submitted
* Description: Please see attachment for further details about the request.
From: United States Customs and Border Protection
Shawn Musgrave
411A Highland Ave Somerville MA 02144
Dear Shawn Musgrave:
This automated notice acknowledges receipt of your Freedom of Information Act (FOIA) request to U.S. Customs and Border Protection (CBP) received on 11/20/2017. Please use the following unique FOIA tracking number CBP-2018-013173 to track the status of your request. If you have not already done so, you must create a FOIAonline account at https://foiaonline.regulations.gov. This is the only method available to check the status of your pending FOIA request. (https://foiaonline.regulations.gov/)
Provisions of the Act allow us to recover part of the cost of complying with your request. We shall charge you for records in accordance with the DHS FOIA regulations outlined on the DHS website, https://www.federalregister.gov/documents/2016/11/22/2016-28095/freedom-of-information-act-regulations. By submitting your request, you have agreed to pay up to $25.00 in applicable processing fees, if any fees associated with your request exceed this amount, CBP shall contact you; however, the first 100 pages are free. (https://www.federalregister.gov/documents/2016/11/22/2016-28095/freedom-of-information-act-regulations)
Due to the increasing number of FOIA requests received by this office, we may encounter some delay in processing your request. Consistent with 6 C.F.R. Part 5 § 5.5(a) of the DHS FOIA regulations, CBP processes FOIA requests according to their order of receipt. Although CBP’s goal is to respond within 20 business days of receipt of your request, FOIA does permit a 10-day extension of this time period in certain circumstances pursuant to 6 C.F.R. Part 5 § 5.5(c).
CBP’s FOIA Division is working hard to reduce the amount of time necessary to respond to FOIA requests. Currently, the average time to process a FOIA request related to "travel/border incidents" is a minimum of 3-6 months. We truly appreciate your continued patience.
For additional information please consult CBP FOIA website please click on FOIA Act Resources or visit (http://www.cbp.gov/site-policy-notices/foia) http://www.cbp.gov/site-policy-notices/foia. (http://www.cbp.gov/site-policy-notices/foia)
From: United States Customs and Border Protection
The FOIA request CBP-2018-013173 has had its Tracking Number changed to CBP-OCC-2018-013173. This is normally due to the request being transferred to another agency (for example, EPA to Dept. of Commerce) or to a sub-agency to process it. Additional details for this request are as follows:
* Old Tracking Number: CBP-2018-013173
* New Tracking Number: CBP-OCC-2018-013173
* Requester Name: Shawn Musgrave
* Date Submitted: 11/20/2017
* Long Description: Data provided to the DHS OIG with regard to the agency's use of summonses under 19 U.S.C 1509.
From: United States Customs and Border Protection
FOIA request CBP-2018-012748 has been closed as it is a duplicate of an earlier FOIA request that you submitted. Your earlier FOIA request CBP-2018-013173 will be processed in the order it was received.
From: United States Customs and Border Protection
The FOIA request CBP-OCC-2018-013173 has had its Tracking Number changed to CBP-IA-2018-013173. This is normally due to the request being transferred to another agency (for example, EPA to Dept. of Commerce) or to a sub-agency to process it. Additional details for this request are as follows:
* Old Tracking Number: CBP-OCC-2018-013173
* New Tracking Number: CBP-IA-2018-013173
* Requester Name: Shawn Musgrave
* Date Submitted: 11/20/2017
* Long Description: Data provided to the DHS OIG with regard to the agency's use of summonses under 19 U.S.C 1509.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Nov. 20, 2017. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #CBP-2018-013173.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Nov. 20, 2017. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #CBP-2018-013173.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Nov. 20, 2017. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #CBP-2018-013173.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on Nov. 20, 2017. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #CBP-2018-013173.
Thanks for your help, and let me know if further clarification is needed.
From: Shawn Musgrave
Hello -
It has been nearly four months since I heard any update on CBP-IA-2018-013173. Please advise as to estimated completion date.
Best,
Shawn Musgrave
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on Nov. 20, 2017. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #CBP-2018-013173.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on Nov. 20, 2017. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #CBP-2018-013173.
Thanks for your help, and let me know if further clarification is needed.
From: United States Customs and Border Protection
The FOIA request CBP-IA-2018-013173 has had its Tracking Number changed to CBP-IA-2018-013173. This is normally due to the request being transferred to another agency (for example, EPA to Dept. of Commerce) or to a sub-agency to process it. Additional details for this request are as follows:
* Old Tracking Number: CBP-IA-2018-013173
* New Tracking Number: CBP-IA-2018-013173
* Requester Name: Shawn Musgrave
* Date Submitted: 07/08/2018
* Long Description: Data provided to the DHS OIG with regard to the agency's use of summonses under 19 U.S.C 1509.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on Nov. 20, 2017. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #CBP-2018-013173.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on Nov. 20, 2017. Please let me know when I can expect to receive a response. You had assigned it reference number #CBP-2018-013173.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on Nov. 20, 2017. Please let me know when I can expect to receive a response. You had assigned it reference number #CBP-2018-013173.
Thanks for your help, and let me know if further clarification is needed.
From: United States Customs and Border Protection
The FOIA request CBP-IA-2018-013173 has had its Tracking Number changed to CBP-2018-013173. This is normally due to the request being transferred to another agency (for example, EPA to Dept. of Commerce) or to a sub-agency to process it. Additional details for this request are as follows:
* Old Tracking Number: CBP-IA-2018-013173
* New Tracking Number: CBP-2018-013173
* Requester Name: Shawn Musgrave
* Date Submitted: 07/08/2018
* Long Description: Data provided to the DHS OIG with regard to the agency's use of summonses under 19 U.S.C 1509.
From: United States Customs and Border Protection
CBP-2018-013173 has been processed with the following final disposition: No Records
From: Shawn Musgrave
To Whom It May Concern:
This is an appeal of inadequate search for documents pursuant to FOIA request CBP-2018-013173, in which I requested:
Data provided to the DHS Office of the Inspector General with regard to the agency's use of summonses under 19 U.S.C. § 1509. Such summonses are issued using form DHS 3115, “Summons to Appear and/or Produce Records, 19 U.S.C. § 1509.”
As described above and as detailed in the attached DHS Office of the Inspector General report, the data requested herein was provided by CBP to DHS OIG (see p4 of the report). However, the CBP FOIA office in its determination letter responded that the requested data "would fall under the purview of The Department of Homeland Security office of Inspector General."
This contradicts the DHS OIG report and general FOIA policy that records and data belong to the originating agency. Furthermore, when I submitted a request for this data to DHS OIG, it determined that any responsive materials were in CBP custody. (See the attached DHS OIG referral letter dated July 2, 2018, p4, indicating that 14 pages of responsive material were referred to CBP.)
Furthermore, documents provided by DHS OIG in response to that request pertain the data requested herein. See the "MEMORANDUM OF ACTIVITY" (dated June 20, 2017) enumerating which CBP OPR offices provided pertinent data regarding issuance of 1509 summons (page 1), as well as analyzing this data (page 2).
In short, per the attached DHS OIG documents, the data requested herein clearly exists and is within CBP custody. The CBP FOIA office has failed to conduct an adequate, good faith search as required under the FOIA. As such, I assert that it is obligatory that this request be remanded to CBP for search and provision of the requested data pursuant to CBP's statutory obligations.
Respectfully,
Shawn Musgrave
From: United States Customs and Border Protection
This message is to notify you of a new appeal submission to the FOIAonline application. Appeal information is as follows:
* Appeal Tracking Number: CBP-AP-2019-047669
* Request Tracking Number: CBP-2018-013173
* Requester Name: Shawn Musgrave
* Date Submitted: 04/26/2019
* Appeal Status: Submitted
* Description: Appeals inadequate search for documents.
From: United States Customs and Border Protection
Dear Mr. Musgrave,
I am the attorney who has been assigned FOIA appeal CBP-AP-2019-047669, in which you request that CBP provide ""Data provided to the DHS Office of the Inspector General with regard to the agency's use of summonses under 19 U.S.C. § 1509" that is the subject of the OIG Report issued on November 16, 2017 (OIG-18-18).
Your appeal states that you filed a similar FOIA request directly with the DHS OIG, and references documents released by OIG in response to your request which you infer are attached to your appeal. Specifically, you reference an attached DHS OIG referral letter dated July 2, 2018, p4, indicating that 14 pages of responsive material were referred to CBP" and a "MEMORANDUM OF ACTIVITY" (dated June 20, 2017) enumerating which CBP OPR offices provided pertinent data regarding issuance of 1509 summons (page 1), as well as analyzing this data (page 2)."
Unfortunately, neither of these documents was attached.
So that we may respond to your appeal as expeditiously as possible, please provide these two documents, either by return email or by creating an account and uploading them onto your appeal in FOIAOnline.
Thank you,
kkv
Kristen Ver Steeg
Attorney-Advisor
U.S. Customs and Border Protection
Office of International Trade - Regulations and Rulings
FOIA Appeals Policy & Litigation Branch
From: United States Customs and Border Protection
Attached please find our decision and responsive records.
From: United States Customs and Border Protection
Mr. Musgrave,
Attached please find our decision and responsive records.
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